Friday, November 30, 2012

$1 Million Driver's License Photo - COTW #120

Phew, the Supreme Court has kept me busy all week. Let's take a break from SCOTUS for a truly bizarre case of the week. I'll call it "The Case of the $1 Million Driver's License Photo."

You can read a full report on the situation on Wired, including this succinct summary of the facts. A female police officer began to suspect that her colleagues were looking up her information and driver's license photo using the state database:
In August 2011 she contacted the state’s Department of Public Safety asking if it was possible to restrict access to her driver’s license file. After explaining the reason behind her request, a worker in the office investigated and found that her record had indeed been accessed by cops repeatedly across the state going back to 2007. Further investigation revealed that 104 officers in 18 different agencies across the state had accessed her driver’s license record 425 times, using the state database as their personal Facebook service.
Huh . . . that doesn't sound normal. Well, it turns out there is something called the Driver's Privacy Protection Act that prohibits unauthorized access to driver's license records (who knew?). The woman settled her claims for a whopping $1 million.

I know, I know - you want to see the actual photo. Unfortunately, it's not public and apparently illegal to pull off the state database without authorization. But, if you want to see some other photos of her (and read more back story) - CityPages has you covered.

Don't forget to vote for Lawffice Space in the ABA Blawg 100 Labor and Employment section!

Thursday, November 29, 2012

VIDEO: Recap of SCOTUS Oral Arguments in ERISA Case

On Tuesday, the Supreme Court heard oral arguments in U.S. Airways v. McCutchen - SCOTUSblog case page here; my previous coverage here. You can read the full transcript from oral arguments here. And now, for something completely different . . . the first ever Lawffice Space videocast with my recap (feedback welcome):



If the embedded video player does not appear, click here to view online.

Tuesday, November 27, 2012

Surprise! SCOTUS Drops Noncompete / Arbitration Opinion

In case you didn't know it yet, the Supreme Court loves arbitration. So, what do you think happens when a state court decides a noncompete is unenforceable despite an arbitration clause dictating that all disputes be resolved by an arbitrator (aka not the state court)? If you answered "Supreme Court per curiam benchslap," then congratulations! You're the big winner!

On Monday, the Court issued its brief 5-pager in Nitro-Lift Technologies, LLC v. Howard. I think the opening paragraph pretty much sums it up:
State courts rather than federal courts are most frequently called upon to apply the Federal Arbitration Act(FAA), 9 U. S. C. §1 et seq., including the Act’s national policy favoring arbitration. It is a matter of great im­portance, therefore, that state supreme courts adhere to a correct interpretation of the legislation. Here, the Okla­homa Supreme Court failed to do so. By declaring the noncompetition agreements in two employment contracts null and void, rather than leaving that determination to the arbitrator in the first instance, the state court ignored a basic tenet of the Act’s substantive arbitration law. The decision must be vacated.
The FAA, as federal legislation, is the "supreme law of the land." State courts can't usurp the arbitrator's power even where, as here, there is a clear state statute that makes the noncompete unenforceable.

SCOTUS Arguments on Who is a "Supervisor" for Harassment Claims

Yesterday, the Supreme Court heard oral arguments in Vance v. Ball State University (SCOTUSblog coverage here). You can read my previous coverage of this case here and here. And, the official transcripts from yesterday's arguments are available here.

Existing workplace harassment precedent differentiates between harassment by "supervisors" and co-workers. Employers are subject to vicarious liability, pending the Faragher-Ellerth defense, for harassment by supervisors. Whereas plaintiffs must establish negligence on the part of the employer if the harasser is merely a co-worker.

Vance v. Ball State Univ. will hopefully define who counts as a "supervisor" for employment harassment and hostile work environment claims. The Seventh Circuit held that the harasser can not be a supervisor unless he or she has the power to "hire, fire, demote, promote, transfer, or discipline" the victim. The most noteworthy part of yesterday's argument? Nobody endorsed this test (both parties and the United States argued against it). This seemed to bother Justice Scalia, who I'm guessing will vote in favor of the Seventh Circuit test.

The employee's counsel even went so far as to argue that the parties agreed on the applicable legal standard, which he phrased as:
[T]hose harassers whose employer-conferred authority over their victims enables or materially augments the harassment should count as supervisors.
This led to a number of sometimes silly hypotheticals, which I think were meant to demonstrate the problem with such a wishy-washy test. What if the harasser had the power to play country music at work all day? What if it was hard rock? What if the harasser could subject the victim to a cold work environment? Or make the victim chop onions? Or clean toilets? Justices Alito, Roberts and Scalia all hinted at the problem with having to decide the "materially augments" factor on a case-by-case basis, leading me to believe they will come down in favor of the bright line rule from the Seventh Circuit.

The employer argued that the employee in this case would not meet any of the standards - a point they made in their Brief while arguing that this is a poor case for deciding which "supervisor" test to use. And that's a concern in this case. The employee's case is pretty weak, and the Justices may agree that the supervisor test is not determinative and therefore punt on the issue. I hope that doesn't happen because there is a circuit split on this issue and I want an answer.

There was also a funny little skirmish involving Scalia and Ginsburg with regard to Skidmore deference and administrative deference generally (pp. 18-19). So, the opinions could be split along admin-law loyalties, with some Justices deferring to the EEOC's test (focusing on authority to direct day-to-day work activities).

Frankly, I think this case is a toss up. Did Justice Kennedy tip his hand? Not exactly. In fact, he only made one comment and it was to bring up his own standard that would use the Seventh Circuit bright line rule coupled with "an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment."

My prediction: 5-4 for the bright line rule, split conservative bloc plus Kennedy in the majority with a concurring opinion by Justice Kennedy advocating the "increased duty of care."

Image: Work of federal government on Supreme Court website.

Monday, November 26, 2012

Lawffice Space Named to ABA Blawg 100

I am beyond excited to announce that Lawffice Space has been named to the 2012 ABA Journal Blawg 100. We're not finished yet though! We have an opportunity to shock the world by taking home the title for best labor and employment law blog. Please register and vote here.

I also want to thank Robin Shea for her kind testimonial quoted by the ABA Journal:
Phil Miles has a very entertaining employment law blog, where you can get answers to such burning questions as: Why are lawyers so smart and ridiculously good-looking? And whether calling an employee a jackass is worse than calling him a moron. Even though his posts are frequently funny or odd (in a good way), he also has excellent ‘mainstream’ information as well.
Robin Shea, author of Employment & Labor Insider and a partner at Constangy, Brooks & Smith in Winston-Salem, N.C. I should note that Robin's employment law blog is one of the best around.

The ABA Journal recognized five other employment law blogs. I'm pleased with the selections, and consider all of them blogs that I regularly read:


You can follow the vast majority of honorees, including all of the employment law bloggers, on Twitter at this list created by the ABA Journal.

Friday, November 23, 2012

Vegetarian Discrimination? - COTW #119

My blogging was a little light this week because it was a shortened holiday week. I hope everyone enjoyed Thanksgiving. Now, on with the Case of the Week!

A firefighter in New York has a disciplinary hearing resulting from his failure to show up for work during Hurricane Sandy. The fire department claims he's facing discipline for going AWOL but the firefighter claims it's something else . . . his diet. The NY Post reports FDNY firefighter says he's been ostracized - because he became a vegetarian:
He claims his own problems started when his colleagues started riding him about his dinner choices. But he said the harassment grew to the point where he became a pariah who was regularly given dangerous assignments on the roofs of burning buildings and threatened with physical violence.
I'm not aware of any statutes expressly protecting vegetarianism. I also doubt it is protected by a public policy exception to at will employment that would allow a wrongful discharge claim.

That said, obviously it would be a stupid reason to discriminate against your employees. In this case, the firefighter claims he is in much better shape now which is actually a huge benefit to the fire department. I also assume he is protected by a CBA through a union (again, my assumption - I don't know that for a fact). I should also note that many people are vegetarians for religious reasons, and religion is protected by federal and most (all?) state employment discrimination laws.

Then again, maybe the fire department just gives him dangerous assignments and expects him to show up to work during emergencies because . . . ya know . . . he's a firefighter! Sorry, that's the cynic in me bursting out. In any event, employers should protect their employees from diet-based harassment and discrimination because (1) it's just good business; and (2) the employee might be following his or her religious beliefs.

Tuesday, November 20, 2012

Percentage of EEOC Sexual Harassment Claims Filed by Men on the Rise, But . . .

The EEOC recently announced a $600,000 settlement in a male-on-male sexual harassment case. The press release included an interesting note that "[t]he percentage of sexual harassment complaints filed by men has been steadily growing." And sure enough, the data does not lie. Nerd alert - I made a chart:

Yup, the percentage of EEOC sexual harassment claims filed by men has been increasing over the last 15 years. But, I decided to create a second chart (supernerd alert?), an area chart showing the claims filed by men as a portion of the total sexual harassment charges. When I did this, a funny thing happened:

The number of sexual harassment claims filed by men is practically a straight line! The number barely fluctuates at all. From this, I concluded that the changes in percentage of claims filed by men is almost entirely a result of fluctuations in the number of claims filed by women.

I'm not really sure what to make of this, and invite comments. My best guess (and I emphasize the word guess) is that employers have made a concerted effort to combat sexual harassment through training and awareness, but they're focusing almost entirely on harassment of women. Note that the chart still shows that the vast majority of claims are filed by women, so this is not entirely irrational. However, the result is a decrease in sexual harassment of women with no impact on the claims filed by men.

What's your theory? Drop a comment or hit me on Twitter (@PhilipMiles).

Friday, November 16, 2012

First Amendment Right to Condom-less Porn? - COTW #118

Los Angeles voters recently passed the Safer Sex in the Adult Film Industry Act, which mandates condom use on adult film sets. Porn rights as the employment law case of the week!? Hey, porn stars make a living off of this, so I say it's fair game!

I had constitutional concerns the moment I heard about this law, and apparently I'm not the only one. Antonio Haynes has some nice analysis over at Justia's Verdict: Condoms and Content-Based Discrimination.

Government restrictions on the content of films are generally frowned upon. I know, I know - people will argue that this isn't about restricting the artistic expression of porn producers, it's about public health. There are problems with that argument though. As Haynes points out:
Since 2004, more than 350,000 sex scenes have been shot without condoms, and there has not been a single instance of HIV transmission on set . . . . But even if we assume that STD transmission on adult film sets is an "actual problem," it is unclear whether the Act is narrowly tailored. Narrow tailoring requires that no more speech that is necessary be curtailed. In this instance, the Act makes subject to civil and criminal penalties all sexual speech in which a condom is not used. A required testing regime, much like the one the industry has imposed on itself, would achieve the same ends without curtailing any speech.
There also might be an equal protection problem. After all, does anybody doubt that risky sexual encounters are taking place all over Los Angeles that have nothing to do with the porn industry? If this law isn't about restricting the speech rights of pornmakers, then why doesn't it apply to people having unprotected sex off-camera? In fact, as Haynes notes, many off-camera encounters are even riskier than filming porn because people rarely demand STD test results prior to sexual encounters; whereas, demanding results is standard in the porn industry.

I am not aware of any actual lawsuits yet, but I suspect they're coming. I also anticipate that they will be successful, but only time will tell.

Thursday, November 15, 2012

GMU Civil Rights Law Journal Blog!

Once upon a time, I was the Managing Editor for the George Mason University Civil Rights Law Journal. I still have the plaque on my wall to prove it! (pictured). I was delighted to discover that they have launched their own blog. You can check out the CRLJ Blog here. So far, it appears to be primarily a civil rights blog/article aggregator. I suspect a lot of law journals will launch (or already have launched) blogs as a way to supplement the traditional publication of academic articles. Congrats CRLJ!

Wednesday, November 14, 2012

Confidential Single-Employee Arbitration Clause Ruled Unlawful

The NLRB issued a press release announcing an NLRB Administrative Law Judge's opinion in 24 Hour Fitness USA, Inc. (decision). Per the press release, the employer maintained a policy that:
required new employees to agree in writing to submit all employment-related claims to individual arbitration. Employees were also prohibited from discussing such claims with their co-workers.
The ALJ ruled that the policy unlawfully required employees to waive their right to engage in protected concerted activity under the NLRA.

Employers may wish to dust off their arbitration policies and make sure they are in compliance.

Image: NLRB logo used in commentary on the NLRB. Not official use.

Tuesday, November 13, 2012

Fired for What!? - Election Fallout

The election is now behind us and we can go on about our ordinary routines . . . at least some of us can. Others are not so lucky (or, perhaps they made their own "luck"). Let's cut to the Fired for What!?:
  • Facebooking racial slurs and assassination references: Cold Stone Creamery fired one of its employees for calling President Obama the N-word on Facebook and posting that "Maybe he will get assassinated this term..!!" Yeah, that's just bad for business. HT: My roommate from college let me know about this story on . . . where else? Facebook.
  • Obamacare cutbacks: The election results pretty much guarantee that the ACA is moving forward. Papa John's is just one of many businesses that has vowed to cut back on the number of employees or the employees' hours in response to the increased healthcare costs under Obamacare (aka the Affordable Care Act). This has sparked outrage and calls for a boycott of Papa John's. These people never learn their lesson (remember Chick-Fil-A?) - National Papa John's Appreciation Day is already in the works.
  • Firing (or Threatening to Fire) Employee Based on His Vote: This is not a specific termination story but rather a great blog entry from Eugene Volokh. The bottom line: legally speaking, it's probably a bad idea to fire employees for their votes. I'll just add that even if it were perfectly legal . . . probably still a bad idea.

Friday, November 9, 2012

Facebook Party Pics Doom FMLA Claim - COTW #117

Let's say an employee has a note from her doctor about periodic flareups of excruciating back pain. These flareups leave her "completely incapacitated." So, she takes FMLA leave and then her employer fires her. Sounds like a pretty good FMLA interference and/or retaliation claim, right?

Not so fast! This is the Case of the Week so you know there's a twist. The case is Jaszczyszyn v. Advantage Health Physician Network from the Sixth Circuit. Where does the case go wrong? Where else? Facebook:
About five weeks into her leave, several of her coworkers saw pictures of her drinking at a local festival on Facebook . . . . Because Jaszczyszyn was "friends" with several of her coworkers . . . on Facebook, the pictures were visible to them. One of those coworkers, upset about the behavior she believed was pictured therein, brought the photographs to Bentley’s attention. Bentley noted that "[o]ther staff members on the floor that were also friends with Sara felt a little betrayed or duped by Sara because they were trying to cover for her only to see her out on Facebook partying."
I know, I know - you want to see the pictures. Here they are, courtesy of Eric Meyer.

The employer conducted an investigation and formed an "honest belief" that the employee had committed fraud prior to terminating her. "Honest belief" is the catchphrase that shields the employer from liability - even if its honest belief later turns out to be mistaken. And that's the game folks. Summary judgment for the employer.

Tuesday, November 6, 2012

Election Day, the Electoral College, and My Ancestor

Today is election day! I know this because 3,518 robots and one Clint Eastwood have left me voicemails reminding me to vote (and were even so kind as to let me know for whom I should vote). So, I'm going to take a brief break from employment law for a fun post on the electoral college and one of my ancestors. As you probably know, we don't vote directly for the president of the United States. Instead, we vote for an electoral college that in turn elects the president. As the Constitution provides:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
From there, the Twelfth Amendment kicks in:
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
On this election day, I thought I would share a fun fact about myself. My great great [insert some-number-of-"greats"] grandfather was Samuel Miles, who has the distinction of being the United States' first faithless elector. He was chosen to vote for John Adams, but instead cast his vote for Thomas Jefferson. I have no idea why (if you have info, drop me a comment).

In any event, get out there and vote - and hope that your elector votes the way he or she is supposed to! Also, employers may want to check out Employee Voting Leave Laws in their state.

Image: That's Samuel Miles! Can you see the family resemblance? Public domain for reasons explained here.

Friday, November 2, 2012

"At Will" Survives NLRB Review - COTW #116

It's a two-for-one special this week! The Cases of the Week are a pair of advice memos from the NLRB finding not one, but two "at will" clauses lawful (and the people rejoiced).

An administrative law judge recently ruled that requiring an employee to sign the following "at will" clause is unlawful: "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way." You can read the opinion here.

So, what were the lawful clauses? First up, Mimi's Cafe (opinion here):
AT-WILL EMPLOYMENT The relationship between you and Mimi's Cafe is referred to as "employment at will." This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.
Okay, seems reasonable enough. But, then again, so did the one that was ruled unlawful. Up next, Rocha Transportation (opinion here):
Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.
These all seem pretty similar. So, why are the last two lawful and the first one is not? The last two contain a paragraph of extraordinarily similar analysis (this is from Rocha):
[T]he ALJ found that the signing of the acknowledgement form, whereby the employee-through the use of the personal pronoun "I"-specifically agreed that the at-will agreement could not be changed in any way, was "essentially a waiver" of the employee's right "to advocate concertedly to change his/her at-will status." Thus, the provision in American Red Cross more clearly involved an employee's waiver of his Section 7 rights than the handbook provision here. The parties settled that case before Board review of the ALJ's decision.
Seriously!? The big difference is the use of the pronoun "I"!? In any event, the memo also acknowledged:
Because the law in this area remains unsettled, the Regions should submit to the Division of Advice all cases involving employer handbook provisions that restrict the future modification of an employee's at-will status.
Here I thought "at will" employment was settled law already. Apparently every single employee handbook I've ever seen in my entire life is now suspect, because they all contain an "at will" clause. What am I supposed to tell clients? "Well . . . just don't use 'I' . . . other than that, it's 'unsettled.'" Or at least unsettling.